Earl Washington is Pardoned!

Governor Jim Gilmore of Virginia pardoned Earl Washington Jr. of a 1982 murder on Oct. 2, 2000. But Washington has not been freed, as he is serving a sentence for an unrelated crime.

For the first time ever in Virginia, an innocent person condemned to death row has now been pardoned as the result of DNA testing. Earl Washington was convicted of murder 16 years ago, and the trial transcript — available in Culpeper County Courthouse in Culpeper, Va. — recounts a speedy trial in which police told of a “confession” in which Washington got numerous important facts wrong and failed to produce substantive information about the crime to which he was “confessing.”

Washington was arrested in 1983 in a neighboring county for hitting a woman with a chair when she surprised him in her kitchen. He maintains that he was in fact guilty of this act. The police asked him if he raped her, and he said yes. They then asked him about four other crimes involving sex. He confessed to them all, although he jumbled the facts whenever asked to produce them on his own. The woman whom Washington hit said he did not try to rape her. Three of the other cases were dropped for similar reasons. Washington has an IQ of 69 and a documented habit of agreeing with people.

For one crime, the victim was dead and unable to say Washington didn’t do it. So a trial was held for murder. Washington is African American. The victim, who had been raped and murdered, was white. Testing of semen left on the scene excluded Washington as a donor, but his lawyer did not bring this fact up in the trial. Washington was convicted largely on the basis of his “confession,” although there was no video or audiotape and even the accounts of the various interviews given by the police clearly suggested innocence.

Washington came within a week of being executed. Lawyers working pro bono convinced then-Governor Douglas Wilder to have DNA testing done. Wilder did not tell the lawyers all the results, but offered to commute Washington’s sentence to life imprisonment if Washington gave up the opportunity to further appeal the case. Washington accepted the deal.

Just this year the state revealed that the DNA tests on some of the material had excluded Washington. Tests on other samples had either completely excluded Washington (according to an expert for the defense who was an inventor of the technology used), or left the possibility that Washington and someone else did the crime or that the victim had consensual sex with someone other than Washington or her husband in the hours prior to the crime.

Washington’s lawyers objected to this unindicted co-ejaculator theory on the grounds that the victim and other witnesses had only mentioned one attacker, and the victim had been home with her small children all morning.

No new trial could be given Washington, since 21 days had gone by since the original trial. Virginia’s 21-day rule for requesting a new trial on grounds of new evidence is the strictest in the country. The state’s Supreme Court, shortly after Washington was pardoned, surprised many with a statement that it will probably soon eliminate the 21-day rule in capital crimes. (See related story.)

Early in 2000, Washington’s lawyers requested new, more advanced, DNA testing. It took Gilmore four months to agree to this, and four more to announce the results.

He gave no details. Unlike a trial, which would be public, the DNA results — in all their details — are secret. The citizens of Virginia must, like Washington, await the pleasure of the governor and be told only what he chooses to reveal.

So far, Gilmore has said that at least some of the DNA matches a convicted rapist in the state’s DNA database. Reports suggest that Gilmore has not said if this rapist is incarcerated, how long the state has known of or could have known of this identification, or whether the man committed crimes AFTER the trial that put Washington on death row.

Many groups in Virginia are now lobbying for reforms including the repeal of the 21-day rule and enactment (on the federal level) of legislation that would require states to give DNA testing to some or all convicts with biological evidence to be tested. The details of this Innocence Protection Act are not resolved — including the question of whether the test results will have to be public record. (See related story.)

In a statement released Oct. 2, Gilmore said, “In my judgment, a jury afforded the benefit of the DNA evidence and analysis available to me today would have reached a different conclusion regarding the guilt of Earl Washington. Upon careful deliberation and review of all of the evidence, as well as the circumstances of this matter, I have decided it is just and appropriate to intervene in the judicial process by granting Earl Washington an absolute pardon for the capital murder and rape of Rebecca Williams,” he said, according to the Richmond Times Dispatch.

The Times Dispatch reported that Barry A. Weinstein, one of Washington’s lawyers, said he spoke with Washington, who told him, “I feel good. I’ve been telling everybody I didn’t do it.” Then, said Weinstein, Washington said, “I guess I’m freed.” Weinstein had to tell him he was not.

Although pardoned, Washington is not free. He is still doing time on a 30-year sentence for hitting the woman with the chair. He was not able to earn good time when on death row, and earned it at half the normal rate when he had a life sentence. Gilmore turned the question of paroling Washington over to the Virginia Department of Corrections, which said it would calculate his release date as if he had never been convicted of the murder. The DOC determined that a mandatory release date for Washington would be in February 2001, but said the Parole Board would be able to consider releasing him in November of this year.

Gerald T. Zerkin, another of Washington’s lawyers, said, “Obviously, we’re pleased that he’s been exonerated, though a more conclusive declaration of his innocence [from Gilmore] would have been nice,” the Associated Press reported.

Zerkin said, “What is particularly disappointing is that he has not resolved the question of the [assault] case and simply released him after everything Mr. Washington has been through and instead has put him in the position of having to wait until administrative questions about his . . . release date are all resolved.”

Eric M. Freedman, another of the four lawyers helping Washington, said “It’s an act of political cowardice and bureaucratic buck passing that compounds the original injustice. No one doubts that Mr. Washington would have been released six or seven years ago on the non-capital charge, which is the Governor’s excuse for continuing to hold him,” he said.

Weinstein told Justice Denied, “The DOC determined that Earl’s mandatory release date is Feb 12, 2001; The DOC determined that his discretionary parole date was January 25, 1989; I do not understand how they came up with these dates in light of Earl’s wrongful capital conviction and his almost 10 years of Virginia’s death row. (May 9, 1984-January 14, 1994). However, it has been my contention that but for the wrongful capital conviction, Earl would have been entitled to discretionary parole years ago and most likely would have been paroled per statistics from the Sentencing Reform Commission. Moreover, even if not paroled, Earl should have been released on mandatory release procedures but for the wrongful capital conviction. Now, Earl’s case is being reviewed by the Virginia Parole Board.”

In another communication, Weinstein added: “Earl is still in prison. Come Oct. 21, 2000, will be 17 years 5 months. A very, very long time for a wrongfully convicted man who was 9 days from being executed and spent almost 10 years on Virginia’s death-row. Do not the powers to be have any shame?”